Human Rights. Michael Freeman
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good. Kantian arguments could support the right of the poor to subsistence, even if Kant did not (Ripstein 2009).
Kant’s early writings were racist, and endorsed slavery and European colonialism, but he later rejected these positions and denounced the injustices of colonialism. He has also been justly charged with anti-Semitism. Some see his universalistic rationalism as hostile to cultural diversity, while others argue that Kant’s value of freedom supported cultural pluralism. He came to believe that the violent appropriation of the lands of nomadic peoples for the sake of civilization was unjust both as to means and to ends. He rejected the ‘agriculturalist’ argument that civilized peoples were entitled to subject non-agrarian peoples to their property laws and political rule (Bernasconi 2005; Mack 2003; Muthu 2003).
Kant developed a concept of ‘cosmopolitan right’, by which individuals could be citizens of a universal state of mankind. It specified a ‘right to hospitality’ – the right not to be treated with hostility in a foreign country – but no modern human rights. Kant opposed the idea of a world-state on the ground that it would become tyrannical; a universal federation of sovereign republics was the ideal for international relations. Rights depended on states, and thus states had the right to non-interference. Kant’s philosophy could support a non-coercive, international human-rights regime. Kant also held that international peace was necessary to ensure the state protection of rights (Maliks 2014; Sangiovanni 2015).
There are conflicting interpretations of Kant, and different views of his relation to human rights. Kant’s paradox is that he provided deep and strong arguments that can be used to justify human rights, but, if we seek such justifications in the historical Kant, we may be disappointed.
Inspired by the French Revolution, English radicals adopted the concept of the Rights of Man rather than the appeal to historic rights, as they were seeking reforms for which there were no historical precedents. No one sought to universalize the significance of the French Revolution more than Thomas Paine. The Rights of Man, he maintained, promised ‘a new era to the human race’. They were the rights that men had by virtue of their status as human beings. They owed nothing to society or the state. Paine was a Deist, rejecting both Christianity and atheism. In contrast to Locke, he did not derive rights from our duties to God, but from the fact that God had created all human beings equal (Lamb 2015: 183–9). The state had value, and therefore claims on the obligations of citizens, only as an instrument for the protection of the natural rights of individuals. Paine’s conception of natural rights was uncompromisingly individualist and universalist: the Rights of Man were the rights of everyone, everywhere, at all times (Paine [1791] 1988). Paine also believed that a free, commercial society, with its associated inequalities of wealth, could be combined with political democracy in a way that would secure both individual rights and the common good. His emphasis on individual reason as the basis of politics made him a more robust champion of popular sovereignty than Locke had been, although he never considered votes for women (Philp 1989).
Paine argued that historic rights were indefensible because no moment in history had priority over others as the basis of rights. Equal rights were necessary to motivate everyone to fulfil their duties to others. A system of rights was necessarily also a system of duties, for, if we all have rights, we all have duties to respect the rights of others. Notwithstanding his belief that the origin of human rights was the divine creation of human beings, Paine’s theory of the Rights of Man was grounded in reason, which could support a secular conception of human rights (Paine [1791] 1988).
Paine saw civil society as naturally co-operative and progressive, and the need for governmental regulation as limited. By contrast, the essence of the state was coercion. As civil society grew more complex and stronger, it both needed protection from the state and had the ability to secure it. Paine thought that the pursuit of self-interest was legitimate in civil society, but that it ought to be subordinated to the common good. Like Locke, he accepted inequalities of wealth as legitimate if they were products of differential rationality and industry, but he was more concerned with the misery of poverty than Locke had been. He proposed a system of public welfare financed by progressive taxation. Paine anticipated the social-democratic argument that public guarantees of minimal welfare, far from violating the natural rights of anyone, sustain the rights of all (Philp 1989).
The decline of natural rights
At the end of the eighteenth century the concept of natural rights was opposed by conservatives because it was too egalitarian and subversive, and by some radicals because it endorsed too much inequality of wealth. It suffered philosophically from uncertain foundations once its theological basis had faded. The violence of the French Revolution seemed to confirm the fears of the conservatives. The Revolution discredited the concept of natural rights in England, but did not hold back the movement for reform. Conservatives and reformers, therefore, sought alternatives to natural rights from different motives.
Edmund Burke did not reject the concept of natural rights completely. He recognized the natural rights to life, liberty, freedom of conscience, the fruits of one’s labour, property, and equal justice under the law. Nevertheless, he considered the concept generally to be, at best, a useless metaphysical abstraction, and, at worst, subversive of social order. Thus, the ‘real rights of men’ were social not natural rights. Burke distrusted all abstract theoretical ideas in the making of public policy, as he believed politics to be essentially a practical activity that involved the making of judgements in complex circumstances. The French revolutionary doctrine of the Rights of Man was dangerous because it was simplistic and dogmatic.
Although Burke subscribed to natural-law theory, he opposed the universalism of the natural-rights concept for its failure to take account of national and cultural diversity. This cultural relativism offered little to those who had to endure tyranny. Significantly, Burke appealed to the concept of natural rights when analysing what he regarded as intolerable tyrannies, such as Protestant rule in Ireland (Freeman 1980).
Jeremy Bentham rejected the concept of natural rights more thoroughly than Burke did. Bentham sought to establish law on a rational basis. This required the elimination of all concepts that were vague or fictitious. The concept of natural rights was both. Natural rights were supposed to derive from natural law, but this was fictitious. Once natural rights had been detached from the concept of divine law, Bentham argued, they were based on nothing at all. For Bentham the only rights were legal rights. The facts of pleasure and pain were the basis upon which rational laws could be built, and the object of ethics and politics was the greatest happiness of the greatest number, or the common good. This was the principle of utility, which was an objective standard by which the goodness or badness of laws could be evaluated. Legal rights were valid in so far as they contributed to the common good. Natural rights were not only nonsense; they were also dangerous because they might make society unstable. Claims of natural rights were vague and so disputes over natural rights were likely to be settled by violence. Bentham believed that this explained the co-existence of the Rights of Man and violence in the French Revolution. Moreover, no rights could be absolute, because one rights-claim might conflict with another, but, if the scope of rights was limited, there must be clear criteria for limiting rights and resolving conflicts among rights-claims. The theory of natural rights could not give a clear account of the limits of rights, whereas the principle of utility could by evaluating rights-claims by their relative contribution to the general good. Both the appeal and the danger of natural-rights discourse lay in its simple dogmatism, and its refusal to engage in the hard intellectual work of thinking through the consequences of implementing general principles in the complex circumstances of society. The principle of utility should therefore be adopted, and that of natural rights should be rejected (Waldron 1987: 35–43). Bentham argued for the social and political equality of women well before most natural-rights theorists did so, advocating not only votes for women but also legislation to prevent domestic violence against women (Williford 1975).
In the nineteenth century Utilitarianism superseded the concept of natural rights as the theoretical basis of reform in both England and France. As the Revolution progressed, there was support in France for the view that the concept of natural rights was anarchic. A group of philosophers known as the Idéologues sought to set aside the concept of the Rights